Saul Lehrfreund of the law firm of
Simons Muirhead and Burton (London)

The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,

Meeting on 2 April 1998,

Having concluded its
consideration of communication No.704/1996 submitted to the Human Rights
Committee by Mr. Steve Shaw, under the Optional Protocol to the
International Covenant on Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication,
his counsel and the State party,

Adopts the following:

VIEWS UNDER ARTICLE 5, PARAGRAPH
4 OF THE OPTIONAL PROTOCOL

1. The author of the
communication is Steve Shaw, a Jamaican citizen born in 1966, currently
awaiting execution at St. Catherine District Prison , Spanish Town, Jamaica.
He claims to be a victim of violations by Jamaica of articles 6, 7, 9,
paragraphs 2 and 3, 10, paragraph 1, and 14, paragraphs 1 and 3(b), (c ) and
(d) of the International Covenant on Civil and Political Rights. He is
represented by Saul Lehrfreund of the law firm of Simons Muirhead and Burton
(London).

FACTS AS SUBMITTED BY THE
AUTHOR:

2.1 The author was
convicted with two co-defendants, Desmond and Patrick Taylor See
communications Nos. 705/1996 (Desmond Taylor v. Jamaica), Views adopted on 2
April 1998 and 707/1996 (Patrick Taylor v. Jamaica), Views adopted on 18
July 1997., of four counts of capital murder and sentenced to death in the
St. James' Circuit Court, Montego Bay, on 25 July 1994. His appeal against
conviction was rejected by the Court of Appeal on 24 July 1995. A subsequent
petition for special leave to appeal to the Judicial Committee of the Privy
Council was dismissed on 6 June 1996.

2.2 On 27 March 1992, the
decomposing bodies of Horrett Peddlar, his wife, Maria Wright and their two
small children Matthew and Useph were found on the grounds surrounding the
Peddlar house. They had been "chopped to death" with blows to their heads,
bodies and limbs.

2.3 Between 17 and 22
April 1992 the author (also known as "Curly") was supplied with food stuffs
by a local shop keeper, against security of a tape deck the author had
brought in. On 27 April 1992, the tape deck was handed to the police and
identified as belonging to the deceased on 28 April, in the author's
presence. The author states that he was detained on 28 April 1992 and taken
into custody at Sandy Bay Lock-Up. Evidence of his complicity in the murders
was said to have been a number of oral statements made between Easter 1992
and 14 November 1992:

- at Easter 1992, the author
told one Ms. Sutherland that he had been a party to the murders of Horrett
Peddlar and his wife;

- In an interview preceding a
caution statement made on 29 April 1992, the author allegedly said "you see
what Boxer [Desmond Taylor] mek mi in a"; in the caution statement, the
author described being present at the Peddlar house on the occasion of the
murders with Boxer, a man called "President" and Mark [Patrick
Taylor]."Boxer" and "President" went into the yard; he saw Boxer chop Ms.
Peddlar and President chase after one of the children. Thereafter he helped
Boxer and President dispose of their clothes and was given a tape deck;

- an oral statement was made by
the author at the police station in the presence of Patrick Taylor, to the
effect that "mi and Mark group a de man gate go watch and Boxer and
President go over the yard and chop up de people dem";

- An oral statement made on 5
May 1992 in the presence of Desmond Taylor that "Mi see when President run
down the bog son and boxer chop up the woman";

- and a statement made on 14
November 1992 to fellow prisoners on remand overheard by officer Wright to
the effect that "Mi chop de bwoy Peddlar in a him rass claut".

2.4 At trial, the author
made an unsworn statement denying his presence at the murder and denied that
he made any admissions to Ms. Sutherland and Officer Wright. No witnesses
were called in his defense.

2.5 After his arrest on 28
April 1992, the author was transferred from Sandy Bay lock-up to Montego Bay
lock-up. After his oral statement made in the interview preceding his
caution statement at Montego Bay Police Station on 29 April 1992, he was
taken back to Sandy Bay. On 7 May 1992, he was taken back to Montego Bay and
charged with murder. According to his own account, he was thereafter
detained for 8 months "incommunicado", that is unable to communicate with
lawyers, friends or family. Counsel explains that he has sought to have this
information corroborated on at least two separate occasions; the author's
account on this point has been consistent. Mr. Shaw indicates that he spent
about three months in custody before he was brought before a judge, and that
he spent almost one year in the Montego Bay Police Lock-Up before being
transferred to St. Catherine District Prison, where he was held on remand
until conviction.

THE COMPLAINT:

3.1 Counsel claims that
the author's rights under article 9(2) and (3) of the Covenant were
violated. It is argued that he was not charged until 19 days after his
arrest and that he was not brought before a judge or other judicial officers
for three months. During that period, the author claims that he was
brutalized by the police, and in such circumstances it was critical that he
be brought before a judicial officer without delay.

3.2 The author claims a
violation of articles 9(3) and 14(3)(c) of the Covenant because of the State
party's failure to bring him to trial within a reasonable period of time.
Thus, he spent two years and three months confined at Sandy Bay and Montego
Bay Lock-Ups as well as St. Catherine District Prison prior to his trial; a
lawyer was only assigned to him in April 1994, some two years after the
arrest. Counsel concedes that the complexity of a case is a relevant factor
in considering whether there have been violations of the above provisions,
but contends that the issues in the case against Mr. Shaw were not complex
since the primary evidence against him were his alleged admissions. Nor did
he at any stage request an adjournment of the proceedings.

3.3 Mr. Shaw contends that
the conditions of his confinement at Sandy Bay and Montego Bay prior to
conviction amounted to a violation of articles 7 and 10, paragraph 1 of the
Covenant. The author notes that he shared a small cell with as many as 21
other detainees, which meant that most detainees had to stand up or sit down
for the whole night. Gross overcrowding of the cell, the necessity of having
to sleep on a wet floor, poor ventilation and the inability to see family,
relatives or a legal representative are said to constitute a violation of
article 7 of the Covenant.

3.4 The author claims a
violation of article 14, paragraph 3(b) and (d) of the Covenant, because of
absence of adequate facilities to prepare his defense. He notes that the
first occasion he met with a lawyer was when he was approached by the lawyer
for the Taylor brothers, Mr. Hamilton QC. The latter helped him to obtain
the services of a legal aid representative who then was appointed to a post
of resident magistrate and had to abandon his representation. Thereafter, it
took the author another ten months to obtain legal assistance. Counsel
observes that Mr. Shaw instructed the new legal aid representative to call
his father as a defense witness; the legal aid lawyer ignored the
instruction. Counsel further contends that the same lawyer failed to
investigate the author's alibi and did not act on any of his instructions.
Counsel's failure to represent the author properly on trial meant that the
author was deprived of an opportunity to put any defense to the jury and
allowed the trial judge to direct the jury, in accordance with domestic case
law, that they could ignore his unsworn statement (in which he had said he
was not at the crime scene) if they saw fit. Had evidence in support been
called, no such direction could have been given.

3.5 It is submitted that
the conditions of detention at St. Catherine District Prison constitute a
violation of articles 7 and 10, paragraph 1, of the Covenant. Reference is
made to the findings of several reports issued by non-governmental
organizations on the conditions of incarceration at St. Catherine District
Prison. Conditions of detention applicable to Steve Shaw include:

- No bedding or mattresses are
provided;

- Cells have wholly deficient
sanitation, no electric light, inadequate ventilation, and the only natural
light is admitted through small air vents; for sanitation, only a slop
bucket is provided;

- Prisoners spend most of the
time confined to their cells in almost total darkness. The author is locked
in for a minimum of 23 hours a day;

- Lack of provision for health
care and medical facilities;

- Absence of reeducation and
work programs for condemned inmates on death row.

The author contends that his
rights under the ICCPR as an individual are being violated, notwithstanding
the fact that he is a member of a recognizable class of people - inmates on
death row - who are detained in similar conditions and suffer similar
violations of their rights. But a violation of the Covenant does not cease
to be a violation merely because others suffer the same deprivations at the
same time.

3.6 Counsel argues that
the conditions of incarceration and the cell to which the author remains
confined also represent a violation of the UN Standard Minimum Rules for the
Treatment of Prisoners. Reference is made to the jurisprudence of the Human
Rights Committee. See Views on case 458/1991 (A.W. Mukong v. Cameroon),
adopted 21 July 1994, paragraph 9.3.

3.7 Counsel argues that an
execution which might have been lawful if carried out immediately and
without exposing the convicted prisoner to the aggravated punishment of
inhuman treatment during a lengthy period of detention on death row can
become unlawful if the execution comes at the end of a substantial period of
detention in intolerable conditions. Counsel invokes the judgment of the
Judicial Committee of the Privy Council in Pratt and Morgan as an authority
for the proposition that carrying out a sentence of death may become
unlawful where the conditions in which a condemned prisoner is held, either
in terms of time or physical discomfort, constitutes inhuman and degrading
treatment contrary to article 7 of the Covenant. Mr. Shaw "was sentenced to
death, not to death preceded by a substantial period of inhuman
treatment.... [t]he intervening inhuman treatment .. renders the carrying
out of the sentence unlawful".

3.8 It is submitted that
the State party violated articles 14, paragraph 1, juncto 2, paragraph 3, by
denying the author the right of access to court to seek (constitutional)
redress for the violation of his fundamental rights which he has suffered.
Counsel notes that the State party's failure to provide legal aid for the
purpose of constitutional motions violates the Covenant because this denies
Mr. Shaw an effective remedy in the process of the determination of his
rights. To counsel, proceedings in the Supreme (Constitutional) Court must
conform with the requirements of a fair hearing within the meaning of
article 14, paragraph 1, encompassing the right to legal aid.

STATE PARTY'S OBSERVATIONS AND
COUNSEL'S COMMENTS:

4.1 By submission of 10
October 1996, the State party does not challenge the admissibility of the
case and offers comments on the merits.

4.2 The State party
refutes that there was a breach of article 9, paragraph 2, of the Covenant:
"It may have been 19 days before the author was formally charged, but
obviously he was aware of the reasons for his arrest before this day. The
author was moved between police stations and made several statements
(although he now disputes this) on the offences. In these circumstances, it
cannot be validly argued that he was unaware of the reasons for his arrest."

4.3 On the issue of the
three month delay in bringing the author before a magistrate, the State
party concedes that this period is longer than would be desirable, but "it
cannot necessarily be argued that this amounted to a breach of the
Covenant".

4.4 Concerning the alleged
violation of articles 9(3) and 14(3)(c) of the Covenant, on account of the
duration of the author's pre-trial detention (2 years and 3 months), the
State party notes that during this period, a preliminary inquiry was held
and does not accept that this period constituted undue delay.

4.5 The State party
indicates that it will investigate the author's claim that he was held
"incommunicado" for eight months after his detention. However, the State
party observes that "it is significant that these allegations were
apparently not raised by author's counsel at the trial where this
information, if accepted, may have had a major impact on the case against
the author". No information on the result of the State party's investigation
had been received by 31 December 1997.

4.6 With respect to the
claims under article 14(3) (b) and (d) of the Covenant that the author was
unable to see a lawyer of his own choosing and was forced to consult the
lawyer of his co-defendants, the State party recalls that the author's own
statements show that he was represented by a lawyer who acted only on his
behalf. This lawyer subsequently was appointed Resident Magistrate and thus
could not represent Mr. Shaw any more. At the trial, the author was
represented by counsel, who did consult with him prior to the start of the
trial. On this basis, the State party denies that article 14(3)(b) and (d)
of the Covenant was violated: as the author was assigned legal aid both for
the preliminary inquiry and the trial, the State party has complied with its
obligations under the above provisions.

4.7 With regard to the
claim that legal aid for a constitutional motion should have been made
available to the author, the State party concedes that legal aid is
unavailable for the purpose but denies that this constitutes a violation of
the Covenant: "[i]n respect of article 14(1), there is no requirement ...
that legal aid be made available for constitutional motions".

5.1 In comments, counsel
reiterates his allegations under article 9, paragraphs 2 and 3 of the
Covenant. He notes that the State party has made no attempt to establish why
the author was not brought before a court for three months and why such
conduct does not breach the Covenant. If Mr. Shaw was only charged 19 days
after being detained, this means that he could not have been brought
"promptly" before a judicial officer within the meaning of article 9(3).
Counsel invokes the Committee's General Comment 8[16], which states that
delays under article 9(3) must not exceed a few days, as well as the
Committee's jurisprudence that the term "promptly" does not permit a delay
of more than 2 to 3 days.

5.2 Counsel reaffirms that
the State party is exclusively responsible for the delay in bringing the
author to trial: Mr. Shaw was only assigned a legal aid lawyer for the trial
on 21 April 1994, two years after arrest, which indicates that the judicial
authorities were not ready to proceed before this date. Furthermore, the
conduct of a preliminary inquiry does not invalidate the claim of undue
delay under articles 9(3) and 14(3)(c) of the Covenant: under Jamaican law,
preliminary inquiries are conducted in all murder cases and do not usually
result in pre-trial detention exceeding two years.

5.3 Counsel asserts that
the author's conditions of detention at the Sandy Bay and Montego Bay police
lock-ups violated articles 7 and 10 (1) of the Covenant. The conditions of
the author's pre-trial confinement, including gross over-crowding of the
lock-up cell, necessity of sleeping on a wet floor, poor ventilation and no
opportunity to see relatives, family or a legal representative, violated
article 7 of the Covenant.

5.4 As to article 14,
paragraphs 3(b) and (d), counsel observes that the State party's obligation
under the Covenant is not merely to assign legal aid to the author for the
preliminary inquiry and the trial, but to ensure, especially in a capital
case, that he is given adequate time and facilities to prepare the defense:
"the right to defend means that the accused or his lawyer must have the
right to act diligently in pursuing all available defenses and the right to
challenge the conduct of the case if they believe it to be unfair". The
failure of Mr. Shaw's lawyer to investigate his alibi and act on his
instructions made his representation ineffective.

5.5 Counsel notes that the
State party has failed to react to the author's allegations concerning
appalling conditions of detention on death row, said to be in violation of
articles 7 and 10(1); he notes that, apart from being contrary to the UN
Standard Minimum Rules for the Treatment of Prisoners, these conditions are
contrary to the terms of Resolution 1996/15 of the U.N. Economic and Social
Council on "Safeguards Guaranteeing Protection of the Rights of those facing
the Death Penalty".

ADMISSIBILITY CONSIDERATIONS AND
EXAMINATION OF THE MERITS:

6.1 With the dismissal of
the author's petition for special leave to appeal by the Judicial Committee
of the Privy Council in June 1996, the author has exhausted all available
domestic remedies. The Committee notes that the State party has not raised
any objections to the admissibility of the claims. In these circumstances,
the Committee deems it expedient to proceed with the examination of the
merits of the claims which it considers to be admissible under the Optional
Protocol to the Covenant.

6.2 The Committee,
accordingly, declares Mr Shaw's claims under articles 7, 9, 10 and 14,
paragraphs 1 and 3(b),(c) and (d) of the Covenant, admissible and proceeds
with the examination of their substance, in the light of the information
made available to it by the parties, as required by article 5, paragraph 1,
of the Optional Protocol.

7.1 The author alleges a
violation of articles 7 and 10(1) of the Covenant because he was detained in
unacceptable conditions for several months following his arrest. The State
party has not refuted this claim and promised to investigate it, but failed
to forward to the Committee the findings, if any, of its investigation. In
the circumstances, due weight must be given to the author's allegations. The
Committee notes that during his pre-trial detention, much of which was spent
at Montego Bay Police Lock-Up, the author was confined to a cell which was
grossly overcrowded, that he had to sleep on a wet (concrete) floor, and
that he was unable to see family, relatives or a legal representative until
late in 1992. It concludes that these conditions amount to a violation of
articles 7 and 10, paragraph 1, of the Covenant, constituting inhuman and
degrading treatment and a failure, on the State party's part, to respect the
inherent dignity of the author as a person.

7.2 The author claims that
his execution after a lengthy period on death row in conditions which amount
to inhuman and degrading treatment would be contrary to article 7 of the
Covenant. The Committee reaffirms its constant jurisprudence that detention
on death row for a specific period - in this case three and a half years -
does not violate the Covenant in the absence of further compelling
circumstances. The conditions of detention may, however, constitute a
violation of articles 7 or 10 of the Covenant. Mr. Shaw alleges that he is
detained in particularly bad and insalubrious conditions on death row; the
claim is supported by reports which are annexed to counsel's submission.
There is a lack of sanitation, light, ventilation and bedding; confinement
for 23 hours a day and inadequate health care. Counsel's submission takes up
the main arguments of these reports and shows that the prison conditions
affect Steve Shaw himself, as a condemned prisoner on death row. The
author's claims have not been refuted by the State party, which remains
silent on the issue. The Committee considers that the conditions of
detention described by counsel and which affect Mr. Shaw directly are such
as to violate his right to be treated with humanity and respect for the
inherent dignity of his person, and are thus contrary to article 10,
paragraph 1, of the Covenant.

7.3 The author has alleged
a violation of article 9 of the Covenant, because 19 days passed between his
arrest and his being formally charged. However, it appears from the file
that the author was arrested on 28 April 1992 and not on 18 April 1992, as
indicated in counsel's submission. Mr. Shaw signed a caution statement on 29
April 1992 in front of a Justice of the Peace. The State party does not
contest that the author was kept in custody for at least 9 days before he
was formally charged and that there was a further delay of three months
before he was brought before a judge or judicial officer. This, in the
Committee's opinion constituted a violation of article 9, paragraph 3.

7.4 As to Mr. Shaw's claim
that he was not tried without undue delay because of a lapse of 27 months
between arrest in April 1992 and trial in July 1994, the Committee has taken
note of the State party's argument that the delay is not unduly long
primarily because a preliminary inquiry was held during the period. The
Committee considers, however, that a delay of 27 months between arrest and
trial, during which the author was detained, constituted a violation of his
right to be tried within a reasonable time or to be released. The delay is
also such as to amount to a violation of the author's right to be tried
without undue delay. The State party has failed to provide any justification
related, for example, to particular complexities of the case, which would
help explain the delay. The Committee accordingly concludes that there has
been a violation of articles 9, paragraph 3, and 14, paragraph 3(c), of the
Covenant, in the case.

7.5 The author has claimed
that he had insufficient opportunity to prepare his defense, and that
initially, he had to consult the lawyer of his co-defendants for advice. The
State party notes that the author was assigned legal aid for the preliminary
inquiry and for his trial, and that with this, its obligations under article
14, paragraph 3(b) and (d), have been met. The Committee notes that it is
axiomatic in capital cases that the accused be represented for the
preliminary inquiry and for his trial. In the instant case, it is a matter
of concern that because author's counsel for the preliminary inquiry had to
abandon the defense of Mr. Shaw following a judicial appointment, the author
was left without legal representation for a considerable period. However, it
appears that there were no proceedings during this period and counsel was
assigned to the author some months prior to the start of the trial. This
does not in and of itself amount to a breach of article 14, paragraph 3(b)
and (d), of the Covenant. The author further claims that his legal aid
counsel for the trial failed to call his father as an alibi witness and did
not act on his instructions - but it is not apparent from the trial
transcript and the material before the Committee that counsel's failure to
act on Mr. Shaw's instructions was a function of anything else but her
professional judgment. There is no evidence that counsel's behavior was
arbitrary or incompatible with the interests of justice. In the
circumstances, there has been no violation of article 14, paragraph 3(b) and
(d), of the Covenant.

7.6 The author argues that
the State party's failure to provide him with legal aid for the purpose of
filing a constitutional motion constitutes a violation of his Covenant
rights. The determination of rights in proceedings in the Supreme
(Constitutional) Court of Jamaica must conform with the requirements of a
fair hearing in accordance with article 14, paragraph 1. See communication
No.377/1989 (Anthony Currie v. Jamaica), Views adopted 29 March 1994,
paragraph 13.4; communication No.707/1996 (Patrick Taylor v. Jamaica), Views
adopted 18 July 1997, paragraph 8.2. In Mr. Shaw's case, the Constitutional
Court would be called upon to determine whether his conviction in a criminal
case violated guarantees for a fair trial. In these cases, the application
of the requirement of a fair hearing in the Constitutional Court should
comply with the principles set out in article 14, paragraph 3(d). It follows
that where a condemned prisoner seeking constitutional review of alleged
irregularities in his criminal trial has no means to meet the costs of legal
representation in order to pursue his constitutional remedy and where the
interests of justice so require, legal aid should be made available by the
State party. In the present case, the absence of legal aid deprived Mr. Shaw
of any opportunity to test the irregularity of his criminal trial in a fair
hearing in the Constitutional Court; this constitutes a violation of article
14 of the Covenant.

7.7 The Committee
considers that the imposition of a sentence of death upon conclusion of a
trial in which the provisions of the Covenant have not been respected
constitutes, if no further appeal against the sentence is possible, a
violation of article 6 of the Covenant. In this case, the final sentence of
death in Mr. Shaw's case was passed without having met the requirements for
a fair trial set out in article 14 of the Covenant. It must therefore be
concluded that the right protected under article 6 has also been violated.

8. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before it disclose violations of articles 7, 9, paragraph 3,
10, paragraph 1, 14 paragraphs 1 and 3(c), and consequently of article 6, of
the Covenant.

9. In all these
circumstances, the author is, under article 2, paragraph 3(a), of the
Covenant, entitled to an effective remedy entailing commutation of his death
sentence.

10. On becoming a State
party to the Optional Protocol, Jamaica recognized the competence of the
Committee to determine whether there has been a violation of the Covenant or
not. This case was submitted for consideration before Jamaica's denunciation
of the Optional Protocol became effective on 23 January 1998; in accordance
with article 12(2) of the Optional Protocol it continues to be subject to
the application of the Optional Protocol. Pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to all individuals within
its territory or subjected to its jurisdiction the rights recognized in the
Covenant and to provide an effective and enforceable remedy in case a
violation has been established. The Committee wishes to receive from the
State party, within ninety days, information about the measures taken to
give effect to the Committee's Views.

[The text of an individual
opinion by Committee members N. Ando, P. N. Bhagwati, Th. Buergenthal and D.
Kretzmer is appended to the present document.]

INDIVIDUAL OPINION BY MR. N.
ANDO, P. BHAGWATI, TH. BUERGENTAL

AND D. KRETZMER

The author of this communication
was tried along with Desmond Taylor whose communication we have just
disposed of. We agree with the views expressed by the majority in paragraphs
7.1 to 7.5 but we are unable to agree with the views expressed in paragraph
7.6. We are of the view that in the present case, the State Party was not
obliged to grant legal aid to the author for proceeding before the
Constitutional Court. The same argument based on Article 14 (3) (d) was
advanced on behalf of the author in Desmond Taylor's case, but, disagreeing
with the majority, we rejected that argument and held that article 14 (3)
(d) had no application to the case of Desmond Taylor and there was no
obligation on the State Party to grant him free legal assistance for
proceeding before the Constitutional Court. The same reasoning must apply in
the present case and we must accordingly hold that, so far as the author is
concerned, there was no violation of article 14 (3) (d) and on that account,
of article 14 (1).